In Re: Adoption: P.J.S., Jr., Appeal of: P.S., Sr. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF P.J.S., JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: P.S., SR. : No. 1192 WDA 2014
Appeal from the Order Entered June 23, 2014,
In the Court of Common Pleas of Erie County,
Orphans’ Court, at No. 3A in Adoption 2014.
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 04, 2015
P.S., Sr. (“Father”) appeals from the order entered June 23, 2014,
which granted the petition to terminate Father’s parental rights to his son,
P.J.S., Jr. (“Child”), born in October of 2012. Appellate counsel has filed a
petition to withdraw his representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), which govern withdrawal from representation on direct
appeal.1 Appellant has filed a response to counsel’s petition to withdraw.
We grant counsel’s petition to withdraw and affirm the order terminating
Father’s parental rights.
1
This Court extended the Anders principles to appeals involving the
termination of parental rights in In re V.E., 611 A.2d 1267, 1275 (Pa.
Super. 1992).
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Child was removed from the care and custody of Father and T.N.S.
(“Mother”)2 on June 24, 2013, and adjudicated dependent on July 1, 2013.
The juvenile court held a dispositional hearing on August 9, 2013. At that
time, Erie County Office of Children and Youth (“ECOCY”) had established a
permanency plan for Father, but the juvenile court found aggravated
circumstances based on the termination of Father’s parental rights to
another child in January of 2013, and determined that ECOCY need not
provide Father services. N.T., 6/20/14, at 12. Child’s initial permanency
hearing review occurred on December 13, 2013, and the permanency goal
for Child was changed to adoption at that time.
On January 9, 2014, the ECOCY filed a petition to terminate the
parental rights of Father, who is incarcerated, and Mother pursuant to the
Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), and (b). At that time, Child
resided with B.S. and E.S., his maternal grandparents (“Maternal
Grandparents”), where he had lived with J.B.S.-G. since their removal from
the care and custody of Mother and Father in June of 2013. The orphans’
court held an evidentiary hearing on June 20, 2014.
2
Mother’s parental rights were previously terminated by consent in March
2014. N.T., 6/20/14, at 3. Mother has a second child, J.B.S.-G, born in
November of 2010, who also was a subject of the underlying case. The
termination of the parental rights of J.B.S.-G.’s father, L.G., was before the
lower court at the instant termination hearing on June 20, 2014. We will not
discuss that portion of the proceedings except to the extent necessary to
review the termination of Father’s parental rights to Child.
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In an order entered on June 23, 2014, the orphans’ court terminated
Father’s parental rights to Child pursuant to the Adoption Act, 23 Pa.C.S. §
2511(a)(1), (2), (5), and (b). On July 21, 2014, Father’s appointed counsel
filed a notice of appeal and statement pursuant to Pa.R.A.P. 1925(c)(4),
indicating his intent to file an Anders brief in lieu of a statement of errors
complained of on appeal.3 On July 29, 2014, the orphans’ court filed a letter
indicating it was not preparing a Pa.R.A.P. 1925(a) opinion in light of the
notice of intent to withdraw filed by counsel under Pa.R.A.P. 1925(c)(4).
On September 25, 2014, Father’s counsel filed an Anders brief with
this Court, and on September 29, 2014, he filed a petition to withdraw
representation. Thereafter, Father filed four pro se documents with this
Court, two on October 2, 2014, one on October 6, 2014, and one on
November 26, 2014, which we will treat as his response to the Anders brief.
Before we address the questions raised on appeal, we first must
resolve appellate counsel’s request to withdraw. Commonwealth v.
Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc). See
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (stating,
“When faced with a purported Anders brief, this Court may not review the
3
See In re J.T., 983 A.2d 771, 774 (Pa. Super. 2009) (holding that
decision of counsel to follow Pa.R.A.P. 1925(c)(4) procedure in termination
of parental rights case was proper).
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merits of the underlying issues without first passing on the request to
withdraw.”).
There are procedural and briefing requirements imposed upon an
attorney who seeks to withdraw on appeal. The procedural mandates are
that counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to [his client]; and 3) advise [his client] that he or
she has the right to retain private counsel or raise additional
arguments that the [client] deems worthy of the court’s
attention.
Cartrette, 83 A.3d at 1032 (citation omitted).
In addition, our Supreme Court, in Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), stated that an Anders brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous;
and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. The Supreme Court reaffirmed the principle
that indigents “generally have a right to counsel on a first appeal, [but] . . .
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this right does not include the right to bring a frivolous appeal and,
concomitantly, does not include the right to counsel for bringing such an
appeal.” Santiago, 978 A.2d at 357 (citation omitted). The Court stated:
In the Court’s view, this distinction gave meaning to the Court’s
long-standing emphasis on an indigent appellant’s right to
“advocacy.” . . . As the Court put it, “although an indigent whose
appeal is frivolous has no right to have an advocate make his
case to the appellate court, such an indigent does, in all cases,
have the right to have an attorney, zealous for the indigent’s
interests, evaluate his case and attempt to discern nonfrivolous
arguments.”
Santiago, 978 A.2d at 357–358 (citation omitted).
Father’s counsel has complied with the first prong of Santiago by
providing a summary of the procedural history and facts in the Anders brief.
He has complied with the second prong by referring to any evidence in the
record that he believes arguably supports the appeal. Counsel also set forth
his conclusion that the appeal is frivolous, and stated his reasons for that
conclusion, with appropriate support. Moreover, counsel filed a separate
motion to withdraw as counsel, wherein he stated that he made a
conscientious examination of the record, and he concluded that the appeal is
frivolous. Further, counsel has attempted to identify and fully develop any
issues in support of Father’s appeal. Additionally, counsel sent a letter to
Father, and he attached a copy of the letter to the Anders brief. Counsel
states that he informed Father that he has filed a motion to withdraw and an
Anders brief, and he apprised Father of his rights in light of the motion to
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withdraw as counsel. Thus, Father’s appellate counsel has satisfied the
requirements of Anders and Santiago. We thus conclude that the
procedural and briefing requirements for withdrawal have been met.
In the Anders brief, counsel presents the following issues for our
review:
[Father] asserts that [ECOCY] cannot establish grounds for
termination under Section 2511(a)(1) as the facts of record do
not reveal that he has a settled purpose of relinquishing claim to
the child or that he refused or failed to perform parental duties.
[Father] asserts that the evidence failed to establish
grounds for termination under Section 2511(a)(2) as the facts of
record do not reveal that his “repeated and continued incapacity,
abuse, neglect or refusal caused the [child] to be without
essential parental care” and/or that he cannot or will not remedy
these conditions.
[Father] asserts that the evidence failed to establish
grounds for termination under Section 2511(a)(5) as the facts of
record do not reveal that “the parent cannot or will not remedy
those conditions which led to the removal within a reasonable
period of time, the services or assistance reasonably available to
the parent are not likely to remedy the conditions which led to
the removal or placement of the child within a reasonable period
of time and termination of parental rights would best serve the
needs and welfare of the child.”
[Father] asserts that the evidence did not establish
grounds for termination under Section 2511(b) as the facts do
not show that the termination of [Father]’s parental rights was in
the child’s best interests.
Anders Brief at 5.
Collectively, we address whether the orphans’ court erred in granting
the termination petition because the evidence was insufficient to support the
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termination. We review an appeal from the termination of parental rights in
accordance with the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; [In re]
R.I.S., 36 A.3d [567,] 572 [Pa. (2011) (plurality)]. As has been
often stated, an abuse of discretion does not result merely
because the reviewing court might have reached a different
conclusion. Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 539 Pa. 161, 650 A.2d 1064, 1066 (1994).
In re Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012) (some internal
citations omitted).
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The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
The standard of clear and convincing evidence is defined as
testimony that is so “clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)). This
Court may affirm the trial court’s decision regarding the termination of
parental rights with regard to any one subsection of section 2511(a). In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
The trial court terminated Father’s parental rights under section
2511(a)(1), (2), (5), and (b). We will focus on subsections 2511(a)(2) and
(b), which provide as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
***
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental
well-being and the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will
not be remedied by the parent.
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***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S. § 2511(a)(2) and (b).
To satisfy the requirements of section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal caused the child to be without
essential parental care, control or subsistence necessary for his physical or
mental well-being; and (3) the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied. In re Adoption of M.E.P., 825 A.2d
1266, 1272 (Pa. Super. 2003). The grounds for termination of parental
rights under section 2511(a)(2), due to parental incapacity that cannot be
remedied, are not limited to affirmative misconduct; to the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties. In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002).
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Our Supreme Court set forth our inquiry under section 2511(a)(2) as
follows:
As stated above, § 2511(a)(2) provides statutory grounds for
termination of parental rights where it is demonstrated by clear
and convincing evidence that “the repeated and continued
incapacity, abuse, neglect or refusal of the parent has caused
the child to be without essential parental care, control or
subsistence necessary for his physical or mental well-being and
the conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.” If and
only if grounds for termination are established under subsection
(a), does a court consider “the developmental, physical and
emotional needs and welfare of the child” under § 2511(b).
This Court has addressed incapacity sufficient for
termination under § 2511(a)(2):
A decision to terminate parental rights, never to be
made lightly or without a sense of compassion for
the parent, can seldom be more difficult than when
termination is based upon parental incapacity. The
legislature, however, in enacting the 1970 Adoption
Act, concluded that a parent who is incapable of
performing parental duties is just as parentally unfit
as one who refuses to perform the duties.
In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883, 891 (Pa.
1986) (quoting In re: William L., 477 Pa. 322, 383 A.2d 1228,
1239 (Pa. 1978)).
Adoption of S.P., 47 A.3d at 827.
Moreover, our Supreme Court instructed:
[I]ncarceration is a factor, and indeed can be a determinative
factor, in a court’s conclusion that grounds for termination exist
under § 2511(a)(2) where the repeated and continued incapacity
of a parent due to incarceration has caused the child to be
without essential parental care, control or subsistence and . . .
the causes of the incapacity cannot or will not be remedied.
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Adoption of S.P., 47 A.3d at 828.
After re-visiting its decision in R.I.S., regarding incarcerated
parents, our Supreme Court stated:
[W]e now definitively hold that incarceration, while not a litmus
test for termination, can be determinative of the question of
whether a parent is incapable of providing “essential parental
care, control or subsistence” and the length of the remaining
confinement can be considered as highly relevant to whether
“the conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent,” sufficient
to provide grounds for termination pursuant to 23 Pa.C.S.
§ 2511(a)(2). See e.g. Adoption of J.J., 515 A.2d [883,] 891
[Pa. 1986] (“A parent who is incapable of performing parental
duties is just as parentally unfit as one who refuses to perform
the duties.”); [In re:] E.A.P., 944 A.2d [79,] 85 [(Pa. Super.
2008)] (holding termination under § 2511(a)(2) supported by
mother’s repeated incarcerations and failure to be present for
child, which caused child to be without essential care and
subsistence for most of her life and which cannot be remedied
despite mother’s compliance with various prison programs). If a
court finds grounds for termination under subsection (a)(2), a
court must determine whether termination is in the best
interests of the child, considering the developmental, physical,
and emotional needs and welfare of the child pursuant to
§ 2511(b). In this regard, trial courts must carefully review the
individual circumstances for every child to determine, inter alia,
how a parent’s incarceration will factor into an assessment of the
child’s best interest.
Adoption of S.P., 47 A.3d at 830–831.
This Court has stated that a parent is required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.
A.L.D., 797 A.2d at 337. A parent’s vow to cooperate, after a long period of
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uncooperativeness regarding the necessity or availability of services, may
properly be rejected as untimely or disingenuous. Id. at 340.
At the hearing, ECOCY presented the testimony of Michael P. Davis, a
general field agent for the Pennsylvania Board of Probation and Parole who
was assigned to Father’s case in March 2010. N.T., 6/20/14, at 13–14.
Mr. Davis stated that on June 24, 2008, Father was released on parole from
a 1999 prison sentence imposed for an aggravated assault conviction in
Allegheny County. Id. Mr. Davis explained that when Father began his
relationship with Mother, and especially when Father consumed alcohol,
problems ensued. Id. at 14–16.
Mr. Davis testified that upon first discovering alcohol at Father’s
residence, Father claimed it belonged to Mother. Mr. Davis advised Father,
who was required to refrain from consuming alcohol while on parole, that he
would sanction Father for a parole violation in the future. N.T., 6/20/14, at
15. Subsequently, the Erie Police Department was twice called to respond to
domestic violence between Father and Mother. Id. at 16. Mr. Davis stated
that he advised Father that the terms of his release on parole prohibited
domestic violence and the use and consumption of alcohol. Id.
In July of 2013, Father reported to the parole office with a large
laceration on his ear and stated that Mother had cut him in a domestic
dispute. N.T., 6/20/14, at 17. Mr. Davis testified that he was present at
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Child’s dependency adjudication hearing, where there was testimony that
Father had thrown Mother “through a television set,” and Mother had later
“cut him in the ear in response.” Id. at 18. Mr. Davis stated that he gave
Father a written instruction not to have any contact, directly or indirectly,
with Mother, because of the violent relationship between the couple. Id. at
16–17. According to Mr. Davis, the reason for the no contact order was to
protect Father from Mother, as Mr. Davis’s office had no control over her.
Id. at 18. Mr. Davis testified that in response to Father’s own request, Mr.
Davis placed Father into the Independent Living Dual Diagnosis program at
Stairways, which included both alcohol and mental health programs. Id. at
16–17.
Mr. Davis testified that Father currently was incarcerated as the result
of a driving-under-the-influence (“DUI”) conviction in Allegheny County,
which was a violation of Father’s parole. N.T., 6/20/14, at 18–19. Mr. Davis
explained that Father had pled guilty to DUI and was sentenced. Id. at 21.
Father waived a parole revocation hearing and admitted that he had been
arrested and convicted of DUI. Id. Mr. Davis indicated that he had no
knowledge of Father’s expected release date from incarceration or whether
Father had been evaluated by the parole board. Id. at 21–22.
Kerry Sessler, the ECOCY primary caseworker for Child since July
2013, also testified. N.T., 6/20/14, at 24. Ms. Sessler testified that Father
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had a prior history with ECOCY in that his parental rights to another child
had been involuntarily terminated. Id. at 24–25. Ms. Sessler testified that
A.C., the mother in the prior case, had a protection-from-abuse (“PFA”)
order against Father on her behalf and that of their child, and that the prior
case involved reports of domestic violence and alcohol abuse, which are the
same issues involved in the present case. Id. at 25. Ms. Sessler testified
that when she assumed Child’s case, Father had prior intakes with ECOCY
related to domestic violence and alcohol abuse, and he had a prior criminal
history. Id. at 25–26. Ms. Sessler explained that Father’s criminal history
included criminal violence in a domestic case. Id. at 26.
Ms. Sessler testified that ECOCY did not propose a treatment plan for
Father at the dispositional hearing for Child because aggravated
circumstances were present. N.T., 6/20/14, at 26. Ms. Sessler explained
that as of the goal change hearing in December 2013, Father had not
displayed any indication that he had remedied his problems with domestic
violence and alcohol abuse. Id. at 27. She further stated that Father was
incarcerated in August or September 2013, and was incarcerated at the time
of the December 2013 hearing. Id. Ms. Sessler noted that before he was
incarcerated, Father “was on the street,” and ECOCY continued to receive
reports of domestic violence concerning Father. Id. at 28. She testified that
on July 2, 2013, Father’s car was “shot-up” outside of Mother’s apartment,
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and Father had arrived at Maternal Grandparents’ house at 1:00 a.m.,
intoxicated, requesting to see Child. Id. Police were called, and a police
report was filed regarding the incident. Id. Ms. Sessler stated that the
incidents involving Father and his alcohol abuse continued until he was re-
incarcerated. Id. At the time that the goal was changed in December 2013,
Ms. Sessler testified that Father had not resolved his alcohol abuse or
domestic violence issues. Id. at 28–29.
Ms. Sessler explained that Child has been placed with J.B.S.-G. at
Maternal Grandparents’ home since the children’s initial placement. N.T.,
6/20/14, at 31. Ms. Sessler noted that as of her last involvement with the
case, Maternal Grandparents were meeting Child’s needs. Id. Ms. Sessler
described that in June 2014, Child was eighteen months old, and that she
had not observed any detrimental effects on Child from not being in Father’s
presence. Id. at 32. Ms. Sessler testified that terminating Father’s parental
rights would be in Child’s best interest, and it would not cause any
detrimental effects. Id. at 32-33.
Ms. Sessler testified that ECOCY had prepared a permanency plan for
reunification with Child but that the court never approved it. That plan
included completing domestic violence counseling, therapy, and parenting
classes, and completing a drug and alcohol assessment. N.T., 6/20/14, at
40. She stated Father had visitation with Child from the time of the intake
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until the dispositional hearing. Id. at 41. Ms. Sessler testified that after the
dispositional hearing, she explained to Father that ECOCY could not provide
visitation at the prison because the agency was not providing services, and
that he would have to arrange visitation. Id.
ECOCY also presented the testimony of Kim Covatto, Child’s
permanency caseworker and the caseworker for the family since February of
2014. N.T., 6/20/14, at 89, 92. Ms. Covatto stated that she was working
toward finding a permanent resource for Child. Id. at 89-90. She testified
that Maternal Grandparents were meeting all of Child’s medical, emotional,
and financial needs. Id. at 90. Ms. Covatto stated that Child was twenty
months old at the time of the termination hearing, that she had observed
him, and that he was able to speak some words. Id. Ms. Covatto testified
that Child was placed in the custody of ECOCY before he was one year old,
and that Father had not seen Child since his incarceration. Id. at 90-91.
She represented that Father had not contacted her since she was assigned
to the case. Id. at 91. Ms. Covatto stated that she had not observed any
detrimental effect on Child from being separated from Father. Id. at 91-92.
She testified that the termination of Father’s parental rights would be in
Child’s best interest, and that there would be no detrimental effects on
Child. Id. at 92.
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Upon questioning by the court, Ms. Covatto stated that she based her
opinion that the termination of Father’s parental rights would be in Child’s
best interest on Father’s past history, his ongoing struggle with domestic
violence with Mother, and his impregnating Mother with an additional child, a
female infant, so that Father and Mother are still connected. N.T., 6/20/14,
at 95. Ms. Covatto emphasized Father’s uncertainty regarding his prison-
release date, his indication that he will proceed to a half-way house, which
will prolong his time for beginning to develop a relationship with Child, and
the fact that his parole sentence will not be completed until 2019. Id.
Moreover, Ms. Covatto explained that the services provided to Father were
limited because of his previous involvement with ECOCY regarding domestic
violence and alcohol abuse, and he did not remedy those matters during the
time that the agency worked with him. Id. at 95-96.
ECOCY finally presented, as on cross-examination, the testimony of
Father, who was incarcerated but present in the courtroom. N.T., 6/20/14,
at 53. Father admitted at the termination hearing that in 1998, he was
convicted on charges of aggravated assault, risking a catastrophe, and
arson, and the victim was a female friend. Id. at 54. Father testified that
he was sentenced to serve seven to twenty years in prison, and he was
released from prison in 2007. Id. He stated that he had been convicted of
DUI in Allegheny County, for an offense that occurred in January or February
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of 2013, and that Mother had been with him at the time of the offense. Id.
at 53. Father explained that he was currently incarcerated on a parole
violation for leaving the district without a travel pass in relation to the
offense in Allegheny County. Id. Father testified that he anticipated that
he would have served his six-month sentence for his out-of–district violation
by August 15, 2014. Id.
Father maintained that he became involved with Mother a few years
before the hearing. N.T., 6/20/14, at 54–55. Father acknowledged that his
parental rights to his son, R., with A.C. were terminated in January of 2013.
Id. At 55–56. Father denied any allegations of domestic violence and
alcohol abuse in his case with R.; rather, he claimed that A.C.’s mother
forced A.C. to seek a PFA order against him. Id. at 56.
Father admitted that Child and J.B.S.-G. were in the home at the time
of the domestic violence in July of 2013. N.T., 6/20/14, at 57–58. Father
claimed that he threw Mother into the television set when she destroyed
$6,000 worth of his clothing because he would not take her out for her
birthday. Id. at 58. Father also asserted that when he was stopped by
police for the DUI in early 2013, he ran from the car, and the police officers
later found he was drunk at the police station. Id. at 58. Father admitted
appearing at Maternal Grandparents’ home in a drunken state in the middle
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of the night, that he was incarcerated on August 15, 2013, and he had
remained incarcerated since then. Id. at 58–59.
Father testified that he had written at least four letters to ECOCY, two
dated November 26, 2013, one dated December 31, 2013, and one dated
May 16, 2014, in which he asked about Child’s welfare and admitted his past
mistakes. N.T., 6/20/14, at 59. Father agreed that Child and J.B.S.-G.
should not have been present during the incident with the television. Id. at
61. He indicated that he planned to obtain his commercial driver’s license
upon his release from prison and to drive a truck for a private company or
the City of Erie. Id. Father admitted that he previously had driven a truck
for Glenwood Beer, but had lost that job when he showed up intoxicated on
the morning following the incident in which his car was shot. Id. at 62.
Father expected to be released on parole on August 15, 2014, at the
expiration of his six-month prison sentence, but related that his release was
not a certainty. N.T., 6/20/14, at 74-75. Father admitted that he would not
have served his maximum sentence for the aggravated assault conviction
until 2019, but that he had served his three-day sentence for the DUI
conviction. Id. at 75. Father testified that he was participating in a drug
and alcohol awareness class, Alcohol and other Drugs Community House of
Change Therapeutic Community program, while incarcerated and attending
meetings because he wished to be a good father upon his release. Id.
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Father testified that he believed Child knows him, although he had not seen
Child since July of 2013, when his parole was revoked. Id. at 88. Father
represented that he visited Child after Child’s removal in June of 2013 until
his parole was revoked in July of 2013. Id.
Upon review, we conclude the evidence at the hearing clearly
demonstrated that Father’s continued incapacity, abuse, neglect, or refusal
to parent could not or would not be remedied. He was incarcerated between
1999 and 2007, before Child was born. Father committed a parole violation
and new offense in early 2013, when Child was an infant, which resulted in
Father’s re-incarceration. The trial court properly considered the history of
the case, including Father’s neglect as a parent to Child, as evidenced by his
continued domestic violence and alcohol-related incidents that resulted in his
imprisonment, and determined that Father would not remedy his failure to
parent. The trial court also properly considered that Father’s parental rights
to another child, R., were involuntarily terminated in January of 2013, about
the same time that Father committed the DUI and parole violation offenses
for which he was re-incarcerated. Father continued to engage in domestic
violence with Mother, even while Child and J.B.S.-G. were in the home,
sleeping. He also continued to commit alcohol-related offenses that resulted
in further incarceration for DUI and a parole violation for the alcohol abuse,
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as well as for being outside of the district when not permitted under the
terms of his parole.
We discern no reason to disturb the orphans’ court’s conclusions that
ECOCY sustained its burden demonstrating that Father had an incapacity to
parent Child. Father was unable to remedy the conditions or causes of his
incapacity within a reasonable amount of time, as he had no plan to care for
Child upon his release from prison. Although he claimed to have completed
an anger-management course in prison, there was no evidence that he had
addressed his lack of stable housing or his parenting abilities. Father cannot
now shift the blame to ECOCY for his failure to parent Child.
Father’s argument regarding 23 Pa.C.S. § 2511(a)(2) essentially asks
this Court to make credibility and weight determinations different from those
of the orphans’ court. While Father may claim to love Child, a parent’s own
feelings of love and affection for a child, alone, will not preclude termination
of parental rights. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). We
stated in Z.P. that a child’s life “simply cannot be put on hold in the hope
that [a parent] will summon the ability to handle the responsibilities of
parenting.” Id. at 1125. Rather, “a parent’s basic constitutional right to the
custody and rearing of his child is converted, upon the failure to fulfill his or
her parental duties, to the child’s right to have proper parenting and
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fulfillment of his or her potential in a permanent, healthy, safe
environment.” In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004).
Following our careful review of the record in this matter, we conclude
that the orphans’ court’s credibility and weight determinations are supported
by competent evidence in the record. Adoption of S.P., 47 A.3d at 826–
827. Accordingly, the orphans’ court’s determinations regarding 23 Pa.C.S.
§ 2511(a)(2) are supported by sufficient, competent evidence in the record.
Having determined that the requirements of section 2511(a) are
satisfied, we proceed to review whether the requirements of subsection (b)
have been met. In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super.
2008) (en banc). This Court has stated that the focus in terminating
parental rights under section 2511(a) is on the parent, but it is on the child
pursuant to section 2511(b). Id. at 1008.
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court recently stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include “intangibles such as
love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
791 (Pa. Super. 2012). In In re E.M., 620 A.2d [481,] 485
[(Pa. 1993)], this Court held that the determination of the child’s
“needs and welfare” requires consideration of the emotional
bonds between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of
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permanently severing the parental bond. In re K.M., 53 A.3d at
791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Our review of the record reveals sufficient evidence from which the
trial court properly could have found that there is no bond between Child
and Father. We have stated that in conducting a bonding analysis, the court
is not required to use expert testimony, but may rely on the testimony of
social workers and caseworkers. Z.P., 994 A.2d at 1121. Herein,
Ms. Sessler testified that Child had been adjudicated dependent on July 1,
2013, when he was only eight months old. N.T., 6/20/14, at 24. Ms.
Sessler testified that Child was one and one-half years old4 at the
termination hearing in June of 2014, and that she had not observed any
detrimental effect on Child from the absence of contact with Father. Id. at
32. Ms. Sessler stated that terminating Father’s parental rights would be in
Child’s best interest and that there were no detrimental effects to Child from
the termination. Id. at 32–33.
Child was placed in the custody of ECOCY at only eight months old,
and Father had not seen Child since his incarceration in August 2013, when
Child was merely ten months old. N.T., 6/20/14, at 90-91. Ms. Covatto
testified that Father had not contacted her since she was assigned to the
4
The record reveals that Child was twenty months old at the time of the
termination hearing. N.T., 6/20/14, at 90.
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case. Id. at 91. Ms. Covatto explained that she had not observed any
detrimental effect on Child from being separated from Father. Id. at 91-92.
She testified that the termination of Father’s parental rights would be in
Child’s best interest, and that there would be no detrimental effects to Child
from the termination. Id.
This Court has observed that no bond worth preserving is formed
between a child and a natural parent where the child has been in foster care
for most of the child’s life, and the resulting bond with the natural parent is
attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). In the
instant case, Father failed to “exhibit [the] bilateral relationship which
emanates from the parent[’s] willingness to learn appropriate
parenting . . . .” In re K.K.R.S., 958 A.2d 529, 534 (Pa. Super. 2008). The
orphans’ court properly could have found from the evidence that Father did
not put himself in a position to assume daily parenting responsibilities for
Child so that he could develop a real bond with Child. Rather, Father
continued to engage in domestic violence with Mother and to commit
alcohol-related offenses that resulted in further incarceration for DUI and a
parole violation for the alcohol abuse, as well as for being outside the district
when not permitted under the terms of his parole. See In re J.L.C., 837
A.2d 1247, 1249 (Pa. Super. 2003) (“Once the Father has abandoned
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parental control through his own actions, it is not enough for him to
‘promise’ to do better to regain parental control in the future.”).
As there is competent evidence in the record that supports the trial
court’s credibility and weight assessments regarding Child’s needs and
welfare, and the absence of any bond with Father, we conclude that Father’s
appeal lacks merit as to 23 Pa.C.S. § 2511(b). Adoption of S.P., 47 A.3d
at 826–827. Accordingly, we affirm the termination decree.
Further, we have reviewed the four documents that Father filed with
this Court in response to counsel’s Anders brief. We have concluded that
the orphans’ court had sufficient evidence upon which to terminate Father’s
parental rights, and that the appeal is frivolous. Father’s responses do not
persuade us to find otherwise. We also observe that although Father raised
an ineffective assistance of counsel argument at the commencement of the
termination hearing, he ultimately decided to proceed with counsel. N.T.
6/20/14, at 4-8.
We have independently reviewed the record in order to determine
whether there are any non-frivolous issues present in this case.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having
concluded that there are no meritorious issues, we grant Father’s counsel
permission to withdraw, and affirm the order terminating Father’s parental
rights.
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Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2015
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